Richard PennerMar 9

④ #SusmanGodfrey LLP v. Executive Office of the President (D.D.C. 25-cv-01107, decided 2025-06-27) https://www.courtlistener.com/docket/69881953/susman-godfrey-llp-v-executive-office-of-the-president/

(Concerning Executive Order 14263)

> In April 2025, President Donald J. Trump issued an #ExecutiveOrder targeting the law firm Susman Godfrey LLP (“Susman”) based on the clients it represents and the causes it supports. The order was one in a series attacking firms that had taken positions with which President #Trump disagreed. In the ensuing months, every court to have considered a challenge to one of these orders has found grave constitutional violations and permanently enjoined enforcement of the order in full. .... Today, this court follows suit, concluding that the order targeting Susman violates the U.S. #Constitution and must be permanently enjoined.

....

> The court shares that concern. By its own terms, the Order appears to prevent Susman attorneys from interacting with federal agencies — before whom they currently have a substantial amount of business — and even from entering courthouses. .... Because over a third of Susman’s matters are in federal court or require interaction with the federal government, ..., it is evident that the Order will cause Susman significant financial loss if it goes into effect.

....

> Here, the Order goes beyond violating the Constitution and the laws of the United States. The Order threatens the independence of the bar — a necessity for the rule of law. Accordingly, the court concludes that the balance of the equities and the public interest weigh overwhelmingly in favor of granting the permanent injunction.

— Judge #LorenAliKhan, Docket 206

Show threadRichard PennerMar 9

So, finally about that 97-page brief that kicks off the appeal. It was filed by political appointees and not the career lawyers who would normally work at this level. (The same appointees who seemed fine with dismissal on last Monday.) That might account for the tone which is more "judges bad" and less "judges make mistakes."

My summary: "My Executive Orders always begin with a declaration of my personal animus behind this retaliation because I am governed by that and not the law. The courts are clearly wrong because you are not the boss of me. I can too revoke security clearances for this reason, because I'm pretty sure you told me so. Also, if I sic the DOJ on specific individuals I hate, that's not retaliation, that's just the DOJ doing law things. And it's unfair for the judges to stop me from kicking these bad, bad law firms out of court rooms and signed contracts because I didn't do that yet — just a written, signed order to do so. And if it helps to rule in my favor, you can ignore the part where I confessed this is all retaliation for political reasons and my hurt feelings."

See https://www.courtlistener.com/docket/70694462/perkins-coie-llp-v-doj/ (2026-03-06)

Regarding the security clearance revocation, we have only the #DOJ brief, but it reads a bit more seriously than the rest. #snark #ExecutiveOrder #LawFirms #PerkinsCoie #JennerBlock #WilmerHale #WilmerCutler #SusmanGodfrey #Trump

Show threadRichard PennerMar 10

#KathrynRubino points out that the #Trump #DOJ argues that since nine named #BigLaw #LawFirms capitulated, that must mean that these four law firms and the four judges who ruled for them must be wrong.

> But the most revealing part of the filing comes when the DOJ addresses the broader legal industry, and specifically the firms that chose a different, much more shameful, path than the four challengers. The DOJ points to the firms that didn’t sue, the yellow-bellied nine that cut deals with the administration:

> > The President also issued (or considered issuing) EOs addressing risks and practices from other law firms not parties to this appeal. In fact, many law firms agreed to address their practices and commit to providing pro bono work in the public interest.

— p. 14

> Then helpfully lists the nine firms for those that don’t have their names engraved in the brain:

>> Allen Overy Shearman Sterling; Cadwalader, Wickersham & Taft; Kirkland & Ellis; Latham & Watkins; Milbank; Paul, Weiss; Simpson Thacher; Skadden; and Wilkie Farr.

— p. 14

> And contrasts that capitulation with the plaintiffs,

> > The four plaintiff law firms instead filed suit.

— p. 14

> The DOJ is arguing that the orders are legitimate, in part, because other firms folded.

https://abovethelaw.com/2026/03/dojs-defense-of-trumps-biglaw-executive-orders-look-how-many-firms-we-scared-into-compliance/

DOJ’s Defense Of Trump’s Biglaw Executive Orders: Look How Many Firms We Scared Into Compliance!

Turning Biglaw's capitulation into a legal argument.

Above the Law
Show threadRichard PennerMar 10

Previously, I wrote:

> Regarding the security clearance revocation, we have only the #DOJ brief, but it reads a bit more seriously than the rest.

But that's because the #Trump DOJ is hammering on the language of Department of Navy v. Egan (1988) https://supreme.justia.com/cases/federal/us/484/518/ and Lee v. Garland (2024) https://law.justia.com/cases/federal/appellate-courts/cadc/20-5221/20-5221-2024-10-29.html with all the bluster of a con artist or chat bot in a self-reinforcement loop. But both those cases were predicated on the presumption of regularity — that the appropriate agency, following procedure, undertook a careful determination and the review of which is a nonjusticiable political question. Trump's four #ExecutiveOrders make it clear that none of that happened and all of this is retaliation for not capitulating. And NRA v. Vullo (2024) https://www.oyez.org/cases/2023/22-842 seems to say that is coercion in violation of the First Amendment.

So #MikeMasnick argues https://www.techdirt.com/2026/03/09/doj-un-drops-its-appeal-against-law-firms-files-brief-that-gets-the-first-amendment-exactly-backwards/

> The brief actually cites NRA v. Vullo, .... The Supreme Court held —unanimously — that government officials using their regulatory authority to punish or suppress disfavored private speech can violate the First Amendment, even if the official frames their actions in terms of legitimate regulatory interests.

...

> Vullo actually undercuts their entire argument. The point of the Vullo framework is that when government speech is coupled with government action designed to punish disfavored private expression, the combination can be unconstitutional coercion. The administration [tries the ruse of] ”Section 1 is just government speech.” That’s precisely the move Vullo says you can’t get away with.

So maybe that security clearance revocation is just as much Jello as Trump's Florida lawsuit against the BBC.

Show threadRichard Penner

Now the #LawFirms that went 4-0 defeating the #ExecutiveOrders in the District Courts have filed their appellate briefs on 2026/03/27.

#WilmerHale:
• The Executive Order is unconstitutional and ultra vires from stem to stern, from retaliatory motive to (lack of) methodology or support in statute.
• The Article III judges rule what constitutes wrongful filings, not the President. Also, many of those filings won. Is Trump tired of (us) winning?
• Not only is the blanket security revocation an impermissible act but it was reversed at law firms that capitulated and therefore obviously done for improper, extortionate, purpose. Previously, the Government said that these were blanket revocations given to law firms, so it is too late and too far a stretch to claim *now* that they were individualized.
• The preamble can't be severed from the order when it is the organizing principle for the extortion scheme.

#JennerBlock:
• First Amendment forbids retaliation for associating with the President's political enemies.
• Everything that isn't retaliation is a fig leaf of post-hoc pretext (23 words of pretext and 200+ words of Trump's grievances).
• Blanket security clearance revocation with a promise to look for cause in a later review isn't individualized judgment (as required by the 1st, and 5th Amendments) it is just retaliation without facts or permissible method. This decision is improper and subject to court review.

Mar 29 at 9:48amWeb
Show threadRichard Penner19h ago

#lawsuit #appeal update from Friday continues with more briefs:

#SusmanGodfrey:
• We are being punished for doing our job as lawyers and Constitutionally associating with fellow scapegoat of the President's woes Dominion.
• This retaliation for ... checks notes ... existing without worshiping #Trump is an example of the "wolf com[ing] as a wolf." The Government admitted this.
• As the retaliation scheme is proven, Section 1 can't be severed *now*. It's not government speech, but rather the motive behind a crafted scheme. Also, there is no severability clause in *our* #ExecutiveOrder
• So little due process that we found out about this when Trump signed it on TV.
• The government pointed out that nine other #lawfirms capitulated, thus proving that the harms are not imaginary or speculative.

Show threadRichard Penner19h ago

The fourth brief from Friday:

#PerkinsCoie:
• We have the evidence, the government brought none. 260 unrebutted statements of material fact and the government can't produce evidence of any reason to investigate us other than the President's animus.
• This was retaliation for our use of Constitutional rights, which requires strict scrutiny of the government's interest to take some narrowly tailored action. It wasn't narrow and they didn't attempt to argue so. That's why *we* won a full #SummaryJudgment. (To be fair, #Trump picked on us first — he's always hated us, he was sanctioned for his lawsuit against us — so we had a bit more time.)
• The Constitution gives *us* the right of speech protected from the Government. That the government wants to hide their motive by suppressing the Section 1 they wrote is not supporting any of their rights but part of an engineered scheme to murder ours.
• #PaulWeiss caved and got security clearances back across the board. Quid pro quo isn't how this is supposed to work, right?
• The Government never mentions the Fact Sheet which lays out this scheme and makes everything ripe for the courts to review. If agency X "will restrict" our access that's totally ripe for review, right?

Docs here: https://www.courtlistener.com/docket/70694462/perkins-coie-llp-v-doj/